The New Business Immigration Regime

In light of the increase in stringent immigration policies, the following list allows companies to prepare for immigration enforcement initiatives. With this guidance, you can continue to hire and retain top foreign talent.

Know your alternatives for employees who missed out on the H-1B lottery, their spouses, and Dreamer (DACA) employees.

Given the lottery odds and recent changes by the executive branch, it’s essential to consider all the visa alternatives for your foreign talent. These can include NAFTA and trainee options, along with visas for those with “extraordinary ability” and entrepreneurial interests (you may be surprised to know how companies have saved a couple of key people each year this way). Within a few weeks, you can place an employee in Canada; staffing agencies or PEOs work if you don’t yet have a Canadian operation. If you do—or have other offices abroad—you can send an employee there for a year and then bring them back to the U.S. on the L-1 visa, which doesn’t have an annual quota.

Use a self-correcting electronic I-9 system to foolproof your I-9 employment eligibility program.

The president has authorized a four-fold increase in ICE agents who carry out I-9 audits and other enforcement. These doubled under the last administration as well. The only smart move is to clean house. Many employers rely on advanced I-9 and E-Verify technology to ensure compliance, including mobile options for remote hires. You can even automate the correction of existing I-9 forms at a fraction of the cost and time of an audit. And don’t forget the importance of training. Complimentary tools can be found here.

HR or legal: conduct an internal immigration audit.

Now’s no time to wait for a government audit. Be proactive, starting with annual reviews of Labor Condition Application Public Access Files, changes to employment terms and conditions that may impact employees’ immigration status, maintenance of PERM files, and proper notification when foreign national employees are terminated. A recommended audit checklist is available here.

Implement a business travel compliance program for visa and tax rules.

Even if they don’t require a work permit, business travelers can still be affected by complex and ever-changing immigration and tax regulations. Basic compliance assessment should always be conducted prior to booking international travel. Employers with large volumes of travelers or other risk factors should consider adopting a more comprehensive real-time online system for pre-trip analysis of immigration and tax issues. Some tools give the travelers answers in just one minute, incorporated into your travel and HR systems. Free self-help tools are available here.

Have a policy for employees’ device passwords when requested by authorities.

You may have heard in the news that U.S. airport officials have asked U.S. citizens and others for passwords to their phones and laptops, citing security concerns. Your traveling employees will want to know how they should handle this. Security concerns have led to more frequent requests to unlock phones, laptops, and tablets during traveler inspections at the port of entry. To protect privacy and confidentiality rights, devices with company data could have a sticker affixed with language such as the following: “Property of [Company]. Information on this device cannot be released to any person or entity without the express permission of [Company].” Even if officials demand access, this may preserve future rights for both employer and employee in case sensitive data is compromised in this process. More details can be found here.

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Christy Nguyen, partner of Pearl Law Group, has been passionate about immigration all her life, dedicating all of her professional and volunteer efforts to this field. She’s been helping foreign nationals since 1997 and practicing business immigration law with prominent law firms since 2001. Christy is a graduate of the University of California, Berkeley and Hastings College of the Law. Pearl Law Group is the nation's only firm to win major awards for global immigration, innovation and pro bono service. The firm provides a full range of immigration services, from work permits and permanent residence to immigration program oversight, employment eligibility, and business traveler compliance.